Friday, 29 September 2017

The INPI has had a busy couple of weeks. This week INPI’s president participated in a meeting with representatives of the Intellectual Property Office of the European Union (EUIPO). The aim is to bring a partnership between INPI and EUIPO, through the ‘IP Key Latin America’ which promotes the IP system in Brazil.

The IP Key Latin America has been carried by EUIPO as a European Union (EU) body. The project aims “to stimulate the improvement of IP systems in countries outside the EU.” Mainly it promotes “the exchange of good practice of examination and management, the development of Information Technology tools and participation in global protection systems. The scope of the project can include actions such as the preparation of studies, the organisation of seminars and training events, missions of experts, among other activities.”

Covering issues of cooperation Brazil has also seen in the last couple of weeks two other teamwork/co-operation. The 14th September INPIs’ presidents from Brazil and Argentina, signed a memorandum of understanding, to increase cooperation between the two countries in Industrial Property. In the same line and aiming the same as the IP Key Latin America, this cooperation also promotes “manuals and guidelines for trade marks and industrial designs” It extends to cover “priority projects in the examination of patents; exchange of experiences; bilateral collaboration in the analysis of patent applications; and promoting the use of the IP system in both countries.” INPIs’ presidents also discussed international IP negotiations in Mercosur, the Cooperation System on Operational and Industrial Property Aspects (Prosur), the Ibero-American Industrial Property Program (IBEPI), the Organization World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).

In September also the INPI received a visit from the Danish Patent and Trademark Office (DKPTO) to discuss potential partnerships. The Danish learned about the INPI systems such as the priority examination projects, the digitalization of trade mark documents, among other topics.

Finally INPI announces the World Intellectual Property Organization (WIPO)’s new office in Brazil, located in Rio de Janeiro.

Thursday, 28 September 2017

We hear about a new map…GI map? The Brazilian Instituto Nacional da Propriedade Industrial (INPI) together with the Brazilian Institute of Geography and Statistics (IBGE) have prepared a Map of Geographical Indications of Brazil - available since September 13th, 2017. The Map is one of the results of the agreement between the two Institutes. The aim is to map the Brazilian production and service areas which have received a GI from INPI.

The map incorporates 4 new products recently recognised as Indicação de Procedência (Indication of Source). Brazil has two forms of Geographical Indication (GI): Denominação de Origem (DO) [there are 10 DOs in Brazil] and Indicação de Procedência [49 ISs in total]. DO is more valued because it depends on proof that the product has special characteristics due to its geographical environment, including natural AND human factors.

The new 4 products are: inhame da região São Bento de Urânia (yam), erva-mate de São Matheus (yerba mate), uvas finas de mesa de Marialva (grapes), and the mel de abelhas do oeste do Paraná (honey). The map also shows the farinha de mandioca (flour) of Cruzeiro do Sul, located in the region of Juruá, Acre registered on August 22.

The Peruvian Institute of the Fair Competition and Intellectual Property recently attended the Asia-Pacific Economic Cooperation (APEC) Forum, held in Ho Chi Minh City, Vietnam.
National experts from the different areas of IP were attending diverse workshops and meetings at the event.

Traditional KnowledgePeru showed itself as the leading economy in protecting indigenous peoples' collective knowledge by putting forward a virtual platform related to the TK linked to the biodiversity of the country. In this session of the forum, particular discussion was held “regarding the protection of ancestral knowledge of Peruvian indigenous peoples, in order to preserve and defend them against misappropriation by third parties [by national Law No. 27811]”. Such virtual platform would also see the linking of the TK holders with the potential users, such as universities and research centres.
Peru is part of the Andean Community (CAN). Back in 1996 CAN passed Decision 391 which became the first law in the world to establish general principles for the protection of TK. By 2000 Decision 486 on the Common Industrial Regime for the Community built upon such principles and
created further measures for a defensive protection of TK.
Peru is the second largest Amazonian country and 35% of its population its indigenous. In 2002 Peru passed a law (27811) for the protection of collective knowledge of indigenous peoples related to biodiversity and in 2004, Peru created the National Biopiracy Prevention Commission (Law 28216).

Inventions and New Technologies
Experts on the subject attended the seminar "Opportunities and Challenges in the Marketing of Protected Vegetable Varieties in the APEC region". In this session the national experts talked about "Success stories “sharing Peruvian examples relevant in the commercialization of plant varieties. INDECOPI informs that the information imparted in the seminar was also shared in another seminar organised by the Vietnam Ministry of Agriculture and Rural Development, aimed at Vietnamese professionals, researchers and companies.

Trade Marks
Specialists on this topic participated in the workshop: "Delimitation of trade marks and infringements in a border context".

A new book is hitting the shelves. Prof Kenneth C. Shadlen, London School of Economics and Political Science (LSE), UK writes to inform us of his new book Coalitions and Compliance: The Political Economy of Pharmaceutical Patents in Latin America. Prof Kenneth teaches Development Studies in the Department of International Development at LSE.

Oxford University Press describes the book as

Coalitions and Compliance examines how international changes can reconfigure domestic politics. Since the late 1980s, developing countries have been subject to intense pressures regarding intellectual property rights. These pressures have been exceptionally controversial in the area of pharmaceuticals. Historically, fearing the economic and social costs of providing private property rights over knowledge, developing countries did not allow drugs to be patented. Now they must do so, an obligation with significant implications for industrial development and public health. This book analyses different forms of compliance with this new imperative in Latin America, comparing the politics of pharmaceutical patenting in Argentina, Brazil, and Mexico.

Coalitions and Compliance focuses on two periods of patent politics: initial conflicts over how to introduce drug patents, and then subsequent conflicts over how these new patent systems function. In contrast to explanations of national policy choice based on external pressures, domestic institutions, or Presidents' ideological orientations, this book attributes cross-national and longitudinal variation to the ways that changing social structures constrain or enable political leaders' strategies to construct and sustain supportive coalitions. The analysis begins with assessment of the relative resources and capabilities of the transnational and national pharmaceutical sectors, and these rival actors' efforts to attract allies. Emphasis is placed on two ways that social structures are transformed so as to affect coalition-building possibilities: how exporters fearing the loss of preferential market access may be converted into allies of transnational drug firms, and differential patterns of adjustment among state and societal actors that are inspired by the introduction of new policies. It is within the changing structural conditions produced by these two processes that political leaders build coalitions in support of different forms of compliance

A book about... tango is finished! Lost in translation...

Prof Ken describes his book as

"a new book on the political economy of pharma patents, examining the debates about introducing new pharma patent systems, when this became compulsory post-TRIPS, and then, once in place, debates over revising how these systems function. The empirics are from three LatAm countries (Argentina, Brazil, Mexico)."

Thursday, 21 September 2017

Our dear Jeremy Phillips, the founder of the IPTango, IPKat and many other IP blogs, was awarded the David Goldring Volunteer Award from Marques. The Marques website describes beautifully the meaning of the award attached to the name David Goldring whose 'huge contribution to the organisation over the years' was remarkable [more info here]. David Goldring passed away in June 2016 and the award was 'inaugurated and was presented to his wife Delia (Dee) Goldring at the Annual meeting in September 2016'. This is the second time the award is awarded and it is with such pride that we hear that our own Jeremy was the recipient!

Jeremy is a well known figure among IP lawyers. He has been one of the top IP professors, researcher and practitioner but one of his key characteristics and quite valuable is his passion for whatever he does (surely after retirement he may be running after the grand-kids with a big smile -- perhaps he is learning to dance tango). His energy is contagious and it is an example that many of us follow.

Wednesday, 20 September 2017

Monsieur Periné, a Colombian musical
group, achieved recognition of its name as a well-known trademark. This
declaratory was made by the Superintendence of Industry and Commerce (SIC)
within the opposition process issued by this musical group against the register
of the mixed mark ‘Monsieur
Perruné’
filed for registration in class 41 by Emepe S.A.S., a company offering live music
performances and services. One of the arguments used by the company in its
defence was that its application for registration of the trademark was issued
before (14 October 2016) to that one made by Monsieur Periné (11 November
2016). Under Article
136 of the Decision 486 of the Andean Community of Nations (CAN) the signs that would unduly harm a third-party right
cannot be registered as marks, especially when ‘they
are identical or similar to a mark previously
filed for registration or registered by a third party in respect of the same
goods or services, or for goods or services regarding which the use of the mark
could cause a risk of confusion or association.’ (Emphasis added)

However,
more than an argument against the opposition issued by Monsieur Periné, this
just goes to show that the musical group is acting in line with the Colombian
trademark law. The opposition is a legal proceeding that anyone with a
legitimate interest can initiate to try to prevent the registration of a mark.
On the matter, Article
147 of the Decision 486 of the CAN establishes that ‘the
opponent shall prove his genuine interest in the market of the member country
in which the opposition is filed, which they must do by applying for
registration at the time of filing the opposition.’ From these two Articles, it
has been interpreted that an opposition can be suited either when there is a
mark previously filled for registration or already registered, or when no
registration exists. Unless the opposition is presented based on the prior
existence of a register, the opposition must be issued together with an
application for the registration of the mark that allegedly could be violated
with the concession of the opposed mark.

Evidently,
Monsieur Periné is a successful musical group otherwise its name would not have
been recognised as a well-known mark. By contrast, Emepe S.A.S. was a little know
company, which apparently was trying to take unfair advantage of the prestige
of Monsieur Periné. This, because of the obvious similarities between the signs
‘Monsieur Periné’ and ‘Monsieur Perruné.’

The
case in which a registered mark is declared well-known within an opposition
process was analysed in a previous post. (See
post here)

Finally,
a document of opposition does not require a petition for the recognition of a
well-known mark, but, if included, the decision must not necessarily be
favourable. For example, the register of the sign ‘Forever Sexy’ filled in
class 25 by Victoria’s Secret was recently denied. The decision was made based
on the prior registration of the mark ‘Forever’ in classes 9, 14, 18, 24, 25,
and 35, a property of Forever 21 Inc. ‘Forever’ was not recognised as a
well-known mark at the end of this process. Nonetheless, due to their
similarity, the mark ‘Forever Sexy’ was not able to be registered.

Friday, 15 September 2017

Early September Colombia received a very special and anticipated visit.
As Pope Francis prepared to visit Colombia for a six-day Apostolic Journey, there were some challenges before the arrival of the leader of the Roman Catholic Church. One of the main issues as expected was security. The visit was taken and aimed to “dream about the possibility of transforming [Colombia] and taking the first step.” Colombia is said to be a war-torn country (with more than 50 years of armed conflict) and the visit promoted the themes of peace and reconciliation.

Official Logo and slogan - 'Demos el primer paso'
According to the Vatican Radio ‘The logo of the Journey contains the motto of the Pope’s Apostolic Journey: “Let’s take the first step”’. Such sign was especially created for the visit of Pope Francis to Colombia.

http://www.sic.gov.co

Before the Pope’s arrival an application for registration of the mixed sign ‘demos el primer paso’ was presented by the Episcopal Conference of Colombia at the Superintendence de Industrial y Comercio (SIC). The Episcopal Conference of Colombia is a collegiate body constituted by the bishops of the country, and are the legal representatives of Pope Francis in Colombia.

During the registration process there were no oppositions and the examiner not finding any grounds of irregularity established by the Decision 486 of the Andean Community granted the mark on 23 August 2017 (Resolution 50963/2017).

The newspaper El Mundo acknowledges that the image of celebrities and famous people is common in Colombia since SIC allows the registration of names of ‘personas’ to avoid their use by third parties who may take advantage of their reputation and goodwill. The newspaper gave the example of the registration of ‘Father Rafael García Herreros’, a priest who founded the religious institution Minuto de Dios Corporation, which acted successfully in the registration of the father’s name. SIC refers to cases where the registration of a name has helped to opposed to applications such as the cases of 'Parque Juan Pablo II' and 'Velas y Velones Juan Pablo II'. The signs were denied registraiton under Art 136 of Decision 486.

Monday, 11 September 2017

The webinar aims to give an overview about
the current situation as regards Intellectual Property Rights and Innovation as
well as to provide practical information about the registration and enforcement
of the main IPRs in Mexico.

Attendees will have the chance to see the
importance and main features of each Intellectual Property Right when operating
in Mexico.

The webinar will be held on Wednesday, September
13, 2017, at 15.00 hours (Brussels time) in English.

This free-of-charge event is
business-oriented and is conducted by top professionals that know exactly what
an SME needs to know to improve its business strategy regarding IP registration
and enforcement in the Latin America region.

Wednesday, 6 September 2017

In the same way that Netflix changed the way of watching tv and films, Sportflix, a Mexican company with international partners, was intended to be a platform to provide sports events. Its launch was announced on 30th August last. However, it was suspended on the 29th by the Mexican Industrial Property Institute (IMPI).

On its website, the IMPI explains that following a complaint submitted through its piracy mailbox, the portal Sportflix.net was revised. After that, evidence of a possible violation of the Federal Copyright Law and the Mexican Industrial Property Law was found. This, because the content of the web apparently infringes some of the IPRs of the companies with the broadcasting rights to transmit the sports events found in the Sportflix web site, such as Televisa, TV Azteca, Fox Sports, ESPN, and Univisión.

As a consequence, a provisional measure consisting in suspending the launching of Sportflix was imposed, and a verification visit was communicated. Nonetheless, the verification visit scheduled for August 29th could not be completed because the company´s staff opposed to it.

During an interview with the newspaper El Financiero, Carlos Martínez, the president of Fox Networks Group Latin America, expressed that Fox Sports and other sports content suppliers are waiting for the results of the investigation under development before issuing a complaint about the infraction of their IPRs.

For now, organisations such as the F1, the Fórmula E, the Mexican Football League, and the Champions League confirmed that they have no agreement with Sportflix for the broadcasting rights of the sports contents found on its portal. For its part, Sportflix announces on its web site that ‘before to provide a service in exchange for a subscription, the platform must go through the needed processes, so as to give sports streaming of the best quality.’ It is also affirmed that ‘the pre-register continues to be open’ after which a coupon will be received via email for a free day of access to the platform and the right to be ‘the first to know the date in which the service will be enabled.’

As it can be observed, in this case, the interests of the ‘traditional’ and the ‘new’ way to communicate tv shows, films and sports events to the public are combined. For this reason, it is relevant to know how this will end.

This week we open it up with a Guest Post from David Felipe Alvarez Amezquita, a Colombian lawyer currently working on his PhD at University of Nottingham.

Explain that to me, ‘despacito’ –step by step-

Copyright and
politics. Why is important for an author to keep his rights?

In support for the elections to the constitutional assembly
that was recently voted in Venezuela, during a rally, President Maduro publicly used a
transformed version of the song “Despacito”.
The song, an unprecedented hit this year, has been used on many occasions, but
this particular case has created the total rejection from its authors.

Luis Fonsi said it clearly: “I have never been consulted nor
I have given permission for the change or use of the lyrics of
<<Despacito>> for political purposes…” See here
(Spanish).

This has not been the first case, though. During the recent
presidential race in the US, the use of certain songs by Trump’s campaign was fiercely
rejected.

This has been a clear example of how the role that authors
play in the protection of copyright goes beyond the mere economic interests and
touches the limits of freedom of expression and the exercise of democracy. But,
what if the rights of the author do not belong to her or him anymore?

The General
Comment 17, on “The right of everyone to benefit from the protection of the
moral and material interests resulting from any scientific, literary or
artistic production of which he or she is the author (article 15, paragraph 1
(c), of the Covenant)” published by the Committee on Economic, Social and
Cultural Rights, highlights the fact that author’s moral interests should be
understood as the protection of the “intrinsically personal character of every
creation of the human mind”. This results in the right to be recognised as the
creator of the works and the right to object any distortion, mutilation or
other modification or derogatory action that would be prejudicial to author’s
honour and reputation.

Nevertheless, in some cases, moral rights can be transferred
or eventually waived. The legal tradition in which continental copyright
(author’s rights) is inscribed avoid this possibility. Instead, the legal
tradition for common law copyright allows that these rights can be transferred
or waived. For instance, most, if not all of the Latin
American countries protect author’s moral rights under conditions of
inalienability, non-waiver, and perpetuity. Instead, the US has developed a
complex system of protection of moral rights to produce conformity with their
adhesion to the Berne Convention, article 6.2. (See for example the case of
visual arts, Section 106). The
UK, on the other hand, prohibits the assignation of the moral rights but
accepts their waiving under written contract (sections 94 and 87).

Why is this important? Because moral rights have not been a
peaceful issue in the international arena. One of the best examples of this is
the express exclusion of these rights from the main elements of protection of
copyright within the TRIPS
agreement. By this way, moral rights have been situated outside of the
international trade law. Instead, on the area of human rights, author’s moral
interests have been enacted since the UDHR. How these two spheres interact on
this matter is a question yet to be solved.

In this video
time lapse, it can be seen how different countries have accessed to the
international systems that protect copyright and author’s human rights. It
calls the attention that it was not until the late 1980’s that the US adhered
to the Berne Convention and that once they did, in the next decade the TRIPS
agreement was adopted and the cascade of countries following this was
immediate. A similar cascade occurred when the ICESCR was adopted, but the US
was out of it (this country signed the Covenant but has never adopted it).
Unfortunately, the ICESCR lacks on swift tools of enforceability that the TRIPS
agreement has.

Nevertheless, protecting author’s moral interests can impact
areas situated beyond commerce and closer to democracy. This shows that the
interface between human rights and copyright towards the protection of author's
fundamental rights is not something to disregard.

Even if in some cases countries with a continental tradition
have tilted their policies towards a possible transferability or waiver of
moral rights, as in the case of works created by a commission or under
employment, it looks like a weak author within society is bad for democracy and
not only for business.

David's research is related to the protection of author’s
fundamental rights through copyright in a comparative perspective. He has been
awarded the COLCIENCIAS and the University of Tolima scholarships for doctoral
studies. He has worked as researcher and lecturer in HEIs in Colombia, as Head
of the Register Office of Copyright and as Copyright Advisor for
CERLALC-UNESCO.